State v Nate (No.2) [2014] PGNC 139; N5745 (26 September 2014)

N5745

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR.NO.88 OF 2014

THE STATE

V

GEWA NATE (NO.2)

Kokopo: Lenalia, J
2014: 1st, 9th, 12th, 19th & 26th September

CRIMINAL LAW – Stealing – Plea of not guilty – Trial – Criminal Code s.372 (7) (a) (b)

CRIMINAL LAW – Allegations of stealing – Application of monies allegedly stolen or misappropriated – Evidence shows monies were in fact applied either to her use or to the use of another or other persons.

CRIMINAL LAW – Offence of stealing – Fraudulent taking or conversion of stolen property must be established and that there must be intention to steal the thing – Accused found not guilty of stealing.

Cases cited.

The State v Paul Kundi Rape [1976] PNGLR 96
John Kasaipwalova v The State [1977] PNGLR 257
State v Wilfred Timon Bai [1980] PNGLR 216

Counsel

Mr. L. Rangan, for State
Mr. P. Kaluwin, for the Accused

26th September, 2014

1. LENALIA, J: The accused is charged with one count of stealing an amount of K25, 973.57. The owner of the stolen money was Carpenters Hardware, Kokopo Branch. This is an offence against s.372 (7) (a) (b) of the Criminal Code. The prosecution case is that the accused was employed as an Accounts Clerk with Carpenters Hardware in Kokopo Branch last year when she committed the offence.

2. After she was arraigned, the accused entered a not guilty plea. Only one witness was called on this trial. The witness Mr. Joshua John, gave evidence that between 24th July and 31st August 2013, the defendant was employed as an accounts Clerk with the above company. The witness, is an Accountant by profession and he is currently employed as the Manager of Carpenters Hardware Courts based in Port Moresby. His gave evidence highlighting certain discrepancies he found on the financial records when he noticed from the inspection he did on the Kokopo Branch records of cash collected for the dates and period between 24th July and 31st August 2013.

3. The witness said, the accused was employed by Carpenters Hardware Branch in Kokopo as an Accounts Clerk. Her duties involved collecting the money from the self and do banking nearly every day for any money collected each day. When money is received from customers, it is counted and kept in the safe for it to be banked the next day by 10 am.

4. After he noticed such discrepancies, he notified the Branch Manager in their Lae Office by email dated 12th September 2013. (See Ex. "6"). The great number of copies of deposit slips for the period from 24th July 2013 to 31st August 2013 did not reach his office. According to Mr. John, the total amount not deposited added up to K25, 973.57. The Kokopo Branch Manager was notified and a security officer reported the mater to police. (See Ex. "6"). The accused was arrested and charged.

5. Before witness Joshua was called, the following documents were tendered by consent of the defence counsel and accepted as part of the prosecution evidence:

• Record of interview in Pidgin – Ex. "1".
• English translation – Ex."1A".
• Confessional Statement – Ex.3.
• Statement by Sergeant Mary Tobing – Ex. "4".
• Statement by Puipui Peter – Ex. "5".
• Copy of email from Mr. Joshua John of head office to the Branch Manage in Lae, Ex. "6".
  

6. A submission of no case to answer was made after the prosecution closed their case in terms of the principles stated in State v Paul Kundi Rape [1976] PNGLR 96. This court ruled on 19th this month that there was a case for the accused to answer. After explaining this to the accused, she was informed about her right to give evidence from the witness stand or make a statement from the dock or remain silent. She elected to give evidence.

7. In her evidence, the accused does not deny the fact that the money went missing or was stolen as alleged by the prosecution. She admitted in evidence that, it is true the amount of money alleged to have been stolen was in fact did not go missing, but certain staff members of the branch borrowed the money with the hope of repaying such money later. She said, that was the reason why no receipts were written for the amount alleged to have been stolen.

8. She was asked in chief and cross-examination if she took some of the money that went missing. She said, she was not responsible and further asked if she knows the names of those co-workers responsible for borrowing the money. She named one or two of them. This was the end of the defence case.

Addresses on Verdict

9. The defence submission on verdict is that, the accused has been made to bare the burden that should be borne by the actual culprit who borrowed the money. Now that, the Kokopo Hardware Branch has been closed, those responsible are hiding away. Mr. Kaluwin raised issues about the definition of stealing in s.365 of the Criminal Code, by saying that the accused cannot be found guilty unless she benefitted somehow from the stolen money. Counsel submitted that the accused was not the only one having the knowledge of the pin number to the safe and there was the possibility that other prominent staff were involved in misappropriation of the stolen money.

10. Mr. Rangan argued that pursuant to the definition of stealing in the above section and s.372 (7) (a) (b) of the Criminal Code, the defendant is liable because the money that went missing came into her possession and instead of banking such money, she allowed her workmates to borrow the money. Counsel argued that by definition of s.372 (7) (a) (b), the defendant received the money and it was her responsibility to report to the Kokopo Branch Manager if she was serious about her employer's money. Counsel asked the court to return a verdict of guilty.

Application of Law

11. A number of sections of the Criminal Code were referred to by the lawyers. The charged is laid pursuant to s.372 (7) (a) (b). I quote Subsections (1) to (7) (a) (b). The highlight on the above section is that, there are amendments added to Subsection (1) which do not involve the instant case, but I will quote them because such amended penalties will apply to large sums of moneys such as one million kina and ten million kina. The above provisions state:

"372. Stealing.

(1) Any person who steals anything capable of being stolen is guilty of a crime.

Penalty: Subject to this section, imprisonment for a term not exceeding three years.

(1A) If the thing stolen is money exceeding K1 million and does not exceed K10 million an offender is liable to imprisonment for a term of 50 years without remission and without parole.

(1B) If the thing stolen is money exceeds K10 million, the penalty shall be life imprisonment.

(2) If the thing stolen is a testamentary instrument, (whether the testator is living or dead), the offender is liable, subject to Section 19, to imprisonment for life.

(3) If the thing stolen is anything in course of transmission by post, the offender is liable, subject to Section 19 to imprisonment for life.

(4) If the thing stolen is an aircraft, the offender is liable to imprisonment for a term not exceeding 14 years.

(5) If—

(a) the thing is stolen from the person of another person; or

(b) the thing is stolen in a dwelling-house, and—

(i) its value exceeds K10.00; or

(ii) the offender at or immediately before or after the time of stealing uses or threatens to use violence to any person in the dwelling-house; or

(c) the thing is stolen from a vessel, vehicle or place of deposit used for the conveyance or custody of goods in transit from one place to another; or

(d) the thing is stolen from a vessel that is in distress or wrecked or stranded; or

(e) the thing is stolen from a public office in which it is deposited or kept; or

(f) the offender, in order to commit the offence, opens a locked room, box or other receptacle by means of a key or other instrument,

the offender is liable to imprisonment for a term not exceeding seven years.

(6) If the offender is a person employed in the Public Service, and the thing stolen—

(a) is the property of the State; or

(b) came into the possession of the offender by virtue of his employment,

he is liable to imprisonment for a term not exceeding seven years.

(7) If the offender is a clerk or servant, and the thing stolen—

(a) is the property of his employer; or

(b) came into the possession of the offender on account of his employer,

he is liable to imprisonment for a term not exceeding seven years."

12. The definition of stealing in s.265 of the Criminal Code was referred to by Mr. Kaluwin who submitted that, by definition of the section concerned, the accused should not be found guilty. The above provision states:

"365. Definition of stealing

(1)In this section—

"owner", in relation to a thing, means—

(a) the owner or a part-owner of the thing; or

(b) any person having possession or control of, or a special property in, the thing;

"special property" includes—

(a) any charge or lien on the thing in question; and

(b) any right arising from or dependent on holding possession of the thing in question, whether by the person entitled to the right or by some other person for his benefit.

(2) Subject to the succeeding provisions of this Code, a person who fraudulently takes anything capable of being stolen, or fraudulently converts to his own use or to the use of any other person anything capable of being stolen, is said to steal that thing.

(3) The act of stealing is not complete until the person taking or converting the thing actually moves it or otherwise actually deals with it by some physical act.

(4) A person who takes or converts anything capable of being stolen shall be deemed to do so fraudulently if he does so with intent—

(a) to permanently deprive the owner of the thing of it; or

(b) to permanently deprive any person who has any special property in the thing of that property; or

(c) to use the thing as a pledge or security; or

(d) to part with it on a condition as to its return that the person taking or converting it may be unable to perform; or

(e) to deal with it in such a manner that it cannot be returned in the condition in which it was at the time of the taking or conversion; or

(f) in the case of money, to use it at the will of the person who takes or converts it, even if he intends to afterwards repay the amount to the owner.

(5) In the case of a conversion, it is immaterial—

(a) whether the thing converted is taken for the purpose of conversion, or is at the time of the conversion in the possession of the person who converts it; and

(b) that the person who converts the property—

(i) is the holder of a power of attorney for the disposition of it; or

(ii) is otherwise authorized to dispose of it.

(6) A taking or conversion may be fraudulent, even if it is effected without secrecy or attempt at concealment.

(7) When a thing converted has been lost by the owner and found by the person who converts it, the conversion shall not be deemed to be fraudulent if at the time of the conversion the person converting the thing—

(a) does not know who is the owner; and

(b) believes, on reasonable grounds, that the owner cannot be discovered."

13. Subsection (4) (a) – (f) is relevant on this part of my discussion. In order for a person to be found guilty for an offence of stealing anything capable of being stolen as defined on the above provisions, the prosecution must prove five or six elements.

14. First, they must prove there was a person. Secondly, who fraudulently took or converted the stolen item. Thirdly there must be something capable of being stolen. Fourth he must convert such money to his or to another person or person's use. Fifthly the property must be belonging to another person and the person who takes or converts a thing capable of being stolen must be deemed to do so fraudulently. And finally, if he does so with the intention to permanently deprive the owner of the thing stolen: State v Wilfred Timon Bai [1980] PNGLR 216.

15. In John Kasaipwalova v The State [1977] PNGLR 257, the Supreme Court held that for an offence of stealing to be constituted, there must be actual moving of property that is said to be stolen or in case where there is fraudulent conversion, there ought to be some actual dealing by some physical act or acts of the thing stolen. This must be established by the prosecution evidence.

16. On this trial, I find from the evidence of both the prosecution and defence that, the money allegedly stolen or misappropriated passed through two stages before it came into the safe where the accused was at her work station. At the first stage, the money is collected at the counter from customers. It goes to the second stage and from there, it goes to where the accused used to work. On this case, there is no issue about the money going missing.

17. However, according to the defence evidence, the accused denied benefiting from the amount stolen. She however admitted to the fact that she knows or at that time she knew who borrowed the money. Those who borrowed did so with the intention of repaying such sums.

18. The question I raise here in terms of the definition in s.265 (4) (a) (b) of the Criminal Code is, did the accused have any intention to fraudulently and permanently deprive the owner of the monies alleged to have been stolen? There is evidence that those who borrowed the money intended to repay such money. Secondly, there is no evidence of the accused using any of the money allegedly stolen.

19. The fact that the accused answered questions in the record of interview and in her confessional statement that she was "responsible", the court cannot infer criminal liability unless it is proven otherwise. She admitted she was responsible was because, she was an accounts clerk and she felt, she was partially responsible. It is for these reasons that this court is of the view that, the accused cannot be "crucified" for the sins of others. Those responsible must be arrested and charged.

20. Police officers investigating offences such as stealing or misappropriation ought to be vigilant when coming across cases such as the current one. Interrogations should have gone further to investigate those who were responsible for borrowing the company's money. On the instant case, I answer the above question in the negative and say the accused cannot be held liable for the offence committed by her workmates and the court must dismiss this case. The accused is discharged. Her bail money shall be refunded in full.
__________________________________________________________
The Public Prosecutor: Lawyer for the State,
The Public Prosecutor: Lawyer for the Accused.